주식매수청구권의 본질과 주식매수가액의 결정

Abstract

This Article discusses Article 374-2, Paragraphs 2 through 5, of the Korean Commercial Code that stipulate the shareholders’ appraisal remedy in merger transactions. It singles out the issue of dissenters’ rights to the fair valuation of shares and payment of accrued interest. The Article argues that the question of fair valuation and interest payment should be answered through the understanding of the nature and economic function of the shareholders’ appraisal right. Contrary to the conventional view of appraisal, this Article points out that appraisal cannot be qualified as a minority shareholder protection mechanism in merger transactions. The appraisal remedy increases the welfare of all shareholders, so it affects the likelihood of the merger transaction taking place. This Article concludes that the payment of accrued interest pending the fair valuation negotiation does not fit into Article 374-2 of the Korean Commercial Code, and proposes to separate the legal effect of merger from the outcome of fair valuation negotiation between company and dissenters.